Malaysia has taken a significant step towards the abolition of the death penalty by passing the Abolition of Mandatory Death Penalty Bill 2023 in its Lower House of Parliament on 3 April.
The abolishment of the mandatory death penalty means that judges will now have discretion in considering all the circumstances of the offense and the offender before deciding whether to impose a death sentence or a prison sentence not exceeding 40 years.
The bill will now go to Malaysia’s upper house, the Dewan Negara, for review and, if passed, will be sent to the King for signing into law. The upper house is expected to test the bills on 11 April.
The bill replaces 11 offences previously punishable by an automatic death sentence with discretionary sentences to be decided on a case-by-case basis by judges.
The death penalty will also be removed as an option for some serious crimes that do not cause death, such as discharging of a firearm and trafficking and kidnapping.
The bill received unanimous support from lawmakers and will reduce the number of offences punishable by death and abolish natural life prison sentences.
Since 2018, Malaysia has placed a moratorium on executions, and this new law is seen as a crucial move towards restricting the use of capital punishment.
Civil society in Malaysia and international rights groups welcomed the passing of the bill in Malaysia’s Parliament, believing that the abolition of the mandatory death penalty in Malaysia is a significant achievement for Malaysia’s civil society efforts.
Ngeow Chow Ying, a practising lawyer in Kuala Lumpur and anti-death penalty activist, said many individuals and human rights organisation in Malaysia has long advocated for the abolition of the death penalty.
“The move towards abolition of the death penalty ran across five different governments and over a decade. It is the collective efforts of all involved in shaping public narrative and pushing for the law maker to take up the reform. ”
Ms Ngeow was part of a team of lawyers who represented Malaysian Yong Vui Kong and joined the ‘Save Vui Kong’ campaign, which advocated clemency for Mr Yong, who was on death row for drug trafficking in Singapore.
Vui Kong was arrested in June 2007. He was 18 and a half years old then. The Singapore courts subsequently sentenced him to death for trafficking 47g of heroin into Singapore.
He was originally scheduled to hang on 4 December 2009, but back then, the Yong family, civil society groups both in Malaysia and Singapore worked round the clock, organising public forums and collecting signatures online and on the streets to appeal to then-President Nathan to spare Vui Kong’s life.
On 14 November 2013, Yong’s death penalty was lifted after he was given the Certificate of Cooperation by Singapore’s Attorney-General’s Chambers.
He was the first drug trafficker on death row in the country to have his sentence reduced to life imprisonment. The ‘Save Vui Kong’ campaign was widely seen as a successful example of how civil society groups can help to secure justice for individuals facing the death penalty.
Crucial step towards the total abolition of the death penalty in Malaysia
Dr Lim Chee Han, Co-founder of Agora Society Malaysia, stated that the move is a “huge step forward”, as the movement towards abolition started with the Save Vui Kong campaign in 2010, and since then, civil society has engaged with the public, politicians, and the government.
“While there have been other notable milestones, such as the moratorium on death penalty executions since 2018, the removal of the 11 mandatory death sentence offences is a key stepping stone towards abolition, and there are law ministers, past and present, who are working towards this goal.”
Both Dr Lim and Ms Ngeow agreed that the abolition of the mandatory death penalty is a crucial step towards the total abolition of the death penalty in Malaysia.
Ms Ngeow also noted that the current law reform is a clear example that it takes political will to bring about the abolition of the death penalty, while previous governments had talked about abolition, it took only three months for the current government to make it a reality.
“With the moratorium in place, society will slowly accept that we actually don’t need to execute people to keep us safe. There are more to law and order than simply killing. ”
Professor Saul Lehrfreund, Co-Executive Director of The Death Penalty Project, believes that the passing of the bill is a major milestone for Malaysia and could inspire other countries in the region to reform their own death penalty laws.
“Malaysia’s move comes at a time when some Southeast Asian countries have increased their use of capital punishment,” said Prof Lehrfreund
‘Malaysia’s judge can still deliver the death penalty’
On whether current Malaysia’s laws are able to uphold justice for serious crimes such as murder and drug trafficking, Dr Lim who also works as a senior researcher at Third World Network said there is a lack of concrete evidence to link the death penalty as an effective deterrent to serious crimes such as murder, as compared to a prison term.
“Drug trafficking does not meet the international law which often reserves the death penalty to be used for the “most serious crimes” – drug crime does not meet that threshold.”
Ms Ngeow also noted that Malaysia has only abolished the mandatory death penalty, which means that the judge can, after considering all mitigating circumstances, still hands down the death penalty or, in the alternative imprisonment of 30-40 years plus canning.
“If the judge, after hearing all circumstances, considers that the crime committed is most serious and warrants a death penalty, he can still deliver the death penalty.”
Ms Ngeow, also vice-president of the Civil Rights Committee of the Kuala Lumpur & Selangor Chinese Assembly Hall, said abolitionists argued that restorative justice, which emphasizes redemption and rehabilitation rather than retribution, is a more humane and effective approach to criminal justice.
Challenges achieving total abolition of the death penalty
On the challenges to achieving total abolition of the death penalty for all crimes, Ms Ngeow noted that this is a long process as it does not have the support of society, and the government will face pressure in its total abolition.
The biggest challenge is that concepts such as mandatory death penalty, judge’s discretion, and mitigating circumstances are legal jargon and concept that are difficult to explain to the general public, Ms Ngeow said.
“When the government announced the abolition of the mandatory death penalty, many take it that there will be no more death penalty and that murderer will walk free in the society. It takes a lot of explainer and outreach to explain the difference. ”
Ms Ngeow also highlighted the survey conducted by The Centre in 2019, in which many people believe that if there are circumstances that can justify that the accused does not “deserve” the death penalty, they would prefer an alternative punishment.
Dr Lim said the public sentiments could be easily riled up for the anti-abolition movement, sometimes linked to political mileage to some politicians and political parties on the anti-abolition side.
“Whenever instances of serious and horrifying crimes took place, general public tend to resort to the death penalty as a ‘natural justice’ method, reactionary. Simple poll of public opinion cannot be sought as the yardstick of public understanding of the issue.”
Dr Lim highlighted that in the past, abolitionist NGOs and individuals were often told to change public opinion in their favor before the government would act.
However, the recent abolition of the mandatory death penalty shows that the government can still do the right thing even if it is not popular at that time.
“This latest move certainly would augur well with Malaysia’s image and reputation as a member of the UN Human Rights Council.”
A reference country on how to transition to an abolitionist state
Prof Lehrfreund said that the new law will restrict the use of capital punishment in Malaysia and allow more than 1,300 people currently on death row to have their sentences reviewed.
“The reforms have been a long time coming and individuals and human rights organisations in Malaysia should be applauded for their persistence and courage in advocating for change.”
Both Dr Lim and Ms Ngeow hope that Malaysia can now serve as a reference country on how to transition to an abolitionist state, and many other countries will follow suit.
Dr Lim added that Malaysia shows the way for abolitionist activists and their respective governments how to do it step-by-step; the latest case of development should motivate them moving to the same direction.
Ms Ngeow emphasized that the mandatory death penalty is arbitrary and violates the right to life, which is why it has been deemed unconstitutional in many countries.
She also pointed out that only a few retentionist countries, including Singapore, still uphold this practice.
“The significant, in my opinion, is that in a country like Malaysia where society are generally conservative in terms of law and order and criminal justice, it is a crack for the light to shine through, as society starts to reflect on ourselves, and hopefully for us to eventually move away from this cruel and inhuman punishment, ” Ms Ngeow said.